ACCC crackdown on misleading claims for food products

Protecting the integrity of credence claims made about food products is a priority enforcement area for the ACCC.
– Rod Sims, Chairman of the ACCC, August 2014

A recent spate of investigations conducted by the Australian Competition and Consumer Commission (“ACCC”) into credence claims on food products provides a timely reminder for businesses in all industries to review labels and promotional material to ensure that they do not fall foul of consumer protection legislation.

Misleading “Place of origin” claims on Maggie Beer labels

Earlier this year, celebrity cook Maggie Beer made headlines when her company provided court enforceable undertakings to the ACCC acknowledging that it had made representations on its product labels that the products were manufactured in the Barossa Valley, when this was not the case in respect of all of her products.

The case turned on the use of the phrase “A Barossa Tradition” on ice cream, aged red wine vinegar, extra virgin olive oil and rosemary and verjuice biscuits, as it transpired that these goods were made outside South Australia. View the labels here.

As part of these undertakings, Maggie Beer’s company had to amend the labelling, take advice and introduce a modified compliance program, and publish an educational article about the case in Food Magazine.

This followed an earlier ACCC investigation into Maggie Beer’s daughter’s company and its use of the term “THE BLACK PIG” on its hams and other meat products. The term “THE BLACK PIG” was said to represent that its hams and other similar meats were made from Heritage Berkshire Pigs or other Heritage Black Pig breeds when that was not the case.

Producer has beef over Wagyu claims

More recently, it has been reported that the ACCC intends to investigate claims made in respect of Wagyu beef produced and marketed in Australia. This has arisen after a producer of 100 per cent Wagyu beef complained that meat from cross-bred animals was being passed off as Wagyu beef.

Coles supermarket conduct found misleading

Also this year, the Federal Court decided that Coles supermarket breached the Australian Consumer Law by promoting its bread as being “freshly baked” and “baked today” when the bread was partially baked in overseas factories and then imported into Australia. One of the orders made by the Court required Coles to place a notice for 90 days in all it stores in Australia and online stating that it had made false, misleading and deceptive representations.

Take away tips: How can businesses reduce the risk of making misleading claims?

While each case is unique and there are some “safe harbour” defences when it comes to country of origin claims, as a general rule, business should take a step back and consider how a reasonable consumer would interpret any claims made. If there is any potential for a consumer to interpret a claim in a way that is misleading, deceptive, or false, then caution should be exercised before making such a claim.

Business should also be aware that the potential to make misleading claims is not limited to phrases or sentences. Use of non verbal visual elements such maps, flags, or known national symbols, may give consumers an incorrect impression, for example, that the product was made in a particular location or country. Care also needs be taken when using these types of indicia.